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Decision No. 12,878

Appeal of ANONYMOUS from actions of the Board of Education of the Rocky Point Union Free School District, EDWARD J. MILLIKEN as district superintendent, RAY V. KWAK, as superintendent of schools, HERBERT SCHWEITZER, guidance counselor, MICHAEL BOWLER, assistant principal, and JANET ALTERNATIVE, teacher, regarding the report of suspected child abuse.

Decision No. 12,878

(January 19, 1993)

Pelletreau & Pelletreau, Esqs., attorneys for respondent, Vanessa M. Sheehan, Esq., of


SOBOL, Commissioner.--Petitioner appeals from the action of administrators and school personnel of the Rocky Point Union Free School District ("district") regarding a report to the New York State Child Abuse and Maltreatment Register (the "Central Register") of suspected child abuse involving petitioner's daughter. Petitioner seeks disciplinary action against the superintendent of schools, the district superintendent, the student's guidance counselor, teacher, and assistant principal. Petitioner also seeks damages. The appeal must be dismissed.

During the 1991-92 school year, petitioner's daughter attended the Rocky Point Junior High School. On March 11, 1992, the student asked to see the school nurse for treatment of a facial bruise. When questioned about the injury, she told her teacher that her father had hit her. The teacher brought the student to the assistant principal, where the student informed him that petitioner hit her accidentally while trying to break up a fight with her brother. Thereafter, in the school nurse's office, the student was questioned further by the teacher, her guidance counselor, the school nurse and the assistant principal. The guidance counselor then telephoned the student's mother about the incident. The mother denied that her husband had struck the child and explained that, in fact, her daughter's injuries were sustained when she hit her head on a bedpost during the night.

On March 12, 1992, another student reported to the assistant principal her belief that petitioner had hit his daughter, and that this was perhaps not the first occasion. A similar report was received by the Victim's Information Bureau and passed along to the student's guidance counselor, who then phoned the student's mother a second time. When the guidance counselor informed the student's mother that he intended to report the incident to Child Protective Services ("CPS"), petitioner joined the conversation and requested a meeting.

Petitioner met with the principal and the student's guidance counselor on March 16, 1992. Later that day, the student's guidance counselor called CPS to report the suspected child abuse and followed up by mailing his report.

On March 17 and 18, 1992, petitioner complained to the superintendent about the conduct of school personnel involved in the interrogation of his daughter and the CPS report and sought their apology. Petitioner followed up with a certified letter on March 21, 1992 to the superintendent seeking disciplinary action against the school personnel involved. The superintendent informed petitioner he would look into the matter. After an investigation by his associate superintendent, the superintendent apparently concluded that no action was necessary, since school personnel had followed the procedures required by the Social Services Law. There is no indication, however, that the superintendent ever informed petitioner of his determination.

Meanwhile, CPS announced its investigation on March 17, 1992 with notice to petitioner and, on March 20, 1992, a CPS worker called the student's guidance counselor, who inadvertently gave the wrong street number in petitioner's address. By certified letter delivered April 28, 1992, petitioner requested that the district superintendent of the Suffolk County Board of Cooperative Educational Services (BOCES) investigate respondent superintendent's failure to respond to his March 21, 1992 letter. The district superintendent declined to investigate and on June 1, 1992, the deputy superintendent for BOCES telephoned petitioner to advise him that he could either appeal the matter to respondent board of education or to the Commissioner of Education. In the meantime, CPS informed petitioner on May 13, 1992 that respondent's report of abuse was unfounded.

Petitioner commenced this appeal on June 19, 1992, seeking disciplinary action against the BOCES district superintendent and respondent superintendent for failing to respond to his certified letters, and against the guidance counselor, teacher and assistant principal for making a false report to CPS. Petitioner complains that his family has suffered harm as a result of the improper interrogation of his daughter by school personnel and their false accusations and report of child abuse. He also claims that he was slandered when his neighbor learned of the incident because the guidance counselor gave the wrong address. Petitioner seeks monetary damages for his wife's medical treatment and his daughter's therapy for conditions he claims resulted from the conduct of respondent's administrators and school personnel.

Respondent contends that the appeal should be dismissed as untimely; that the petition fails to state a claim upon which relief can be granted; and that the actions of respondent's personnel were in full compliance with Social Services Law.

As a preliminary procedural matter, petitioner seeks to submit additional exhibits and raise new issues in his reply which were not included in his petition. Sections 275.3 and 275.14 of the Regulations of the Commissioner of Education set forth the scope of a reply in an appeal pursuant to Education Law '310 and allows a response to affirmative defenses and new material raised in an answer. However, the reply does not provide an opportunity to raise new grounds for relief (Appeal of Alexandreena D., 30 Ed Dept Rep 203; Appeal of Santicola, 29 id. 213). Moreover, a reply is not meant to buttress allegations in the petition or to add belatedly assertions which should have been included therein (Appeal of Brousseau, 31 Ed Dept Rep 155; Appeal of Barbara P., et anon, 30 id. 198; Matter of Pronin, 27 id. 203). Therefore, those portions of the reply that raise new issues and the accompanying exhibits will not be considered here.

The appeal is dismissed as against the first named respondent, the board of education, because the matter was never brought before it for action. Consequently, the board has taken no action regarding petitioner's complaint. In an appeal before the Commissioner, the petitioner has the burden to establish the facts upon which he seeks relief (8 NYCRR '275.10; Appeal of Pickreign, 28 Ed Dept Rep 163; Matter of Toftegaard, 25 id. 159; Matter of Keiling, 25 id. 122). Petitioner has failed to meet his burden because he never sought action from respondent board even though the determination whether to proceed against an employee in a disciplinary matter is a question left to the discretion of local boards of education (Matter of Eckstein, 21 Ed Dept Rep 677).

Further, the appeal against the BOCES district superintendent is dismissed as moot because petitioner received a response to his April 28, 1992 letter on June 1, 1992, and the only claim against the district superintendent is based on his alleged failure to respond.

Section 275.16 of the Regulations of the Commissioner of Education requires that appeals brought pursuant to Education Law '310 be initiated within thirty days after the making of the decision or performance of the act complained of. Except for petitioner's inquiries on March 17, 18 and 21, 1992 to the superintendent, and the April 28, 1992 letter to the BOCES district superintendent, respondent identifies the questioning of petitioner's daughter on March 11, 1992 as the action under review. Petitioner's papers indicate that he is challenging the failure of the superintendent to answer his certified letter regarding the incident. Where a parent seeks formal review from the superintendent regarding a school official's actions, the time for filing an appeal does not begin to run until a written determination is made (See, Appeal of a Child with a Handicapping Condition, 31 Ed Dept Rep 488). In this instance, the superintendent never replied to petitioner's March 21, 1992 letter which sought disciplinary action against the school personnel involved in the incident. Accordingly, the petition commenced on June 19, 1992 is timely against the superintendent of schools and the guidance counselor, teacher and assistant principal who engaged in the underlying actions of which petitioner sought review.

Although the appeal is timely against respondent superintendent, it must be dismissed on the merits. In an appeal before the Commissioner of Education, the petitioner has the burden of demonstrating a clear legal right to the relief requested (Appeal of DiMicelli, 28 Ed Dept Rep 327; Appeal of Amoia, 28 id 150). Petitioner seeks disciplinary action against the superintendent for failing to respond to his letter, but the superintendent had no legal duty to respond to his letter. Moreover, petitioner did not seek disciplinary action from the superintendent's employer in the first instance. Because disciplinary action against the superintendent is within the discretion of the board, petitioner could have brought his complaint to the board of education before commencing this appeal to the Commissioner. The authority of the Commissioner to take action against a superintendent is governed by Education Law '306:

Whenever it shall be proved to his satisfaction that any trustee, member of a board of education, clerk, collector, treasurer, district superintendent, superintendent of schools or other school officer ... has been guilty of any wilful violation or neglect of duty under this chapter, or any other act pertaining to common schools or other educational institution participating in state funds, or wilfully disobeying any decision, order, rule or regulation of the regents or of the commissioner of education, said commissioner, after a hearing at which the school officer shall have the right of representation by counsel, may, by an order under his hand and seal, which order shall be recorded in his office, remove such school officer from his office.

Petitioner has not, however, brought this action under '306 and does not seek the superintendent's removal. Even if he had done so, petitioner has not alleged any basis for removal. While it may have been good practice, the superintendent had no legal duty to respond to petitioner's letter. In addition, by affidavit, the superintendent states that he told petitioner on March 17 and 18, 1992 that he would look into his concerns. The associate superintendent conducted an investigation and the superintendent concluded that no action should be taken because school personnel acted appropriately and because CPS was investigating the matter. Through his affidavit, the superintendent has responded to petitioner and explained why he did not apologize in response to his March 21, 1992 letter. Given the superintendent's concern regarding a pending CPS investigation and his previous discussion with petitioner, I do not find that his conduct constituted either a wilful violation or neglect of duty.

Moreover, the record supports the superintendent's conclusion that the school personnel involved acted in accordance with the Social Services Law. Respondent is required to report suspected cases of child abuse to the local CPS pursuant to Social Services Law '413 (see, Education Law '3028-b; Appeal of Gottlieb, 31 Ed Dept Rep 125). Since the record reflects that the individuals who reported to CPS did so in good faith after interviewing the complaining students, observing petitioner's daughter, and meeting with petitioner and his wife, and had reasonable cause to suspect that petitioner's daughter had been abused or maltreated, they are immune from liability under Social Services Law '419. As a result, the appeal is dismissed as against the remaining respondents, as well as the superintendent, whose review of their actions was neither arbitrary, capricious nor unreasonable.

The remainder of the appeal must be dismissed for failure to state a claim upon which relief may be granted. Insofar as petitioner seeks reimbursement for medical expenses and other consequential damages incurred as a result of alleged negligence by school officials, even if respondent's personnel were not granted immunity, the Commissioner of Education lacks jurisdiction to award monetary damages (Application of a Child with a Handicapping Condition, 31 Ed Dept Rep 212).